Lamp v. Heyman
1976 Pa. LEXIS 781, 366 A.2d 882, 469 Pa. 465 (1976)
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Rule of Law:
Under the Pennsylvania Rules of Civil Procedure in effect at the time of this case, filing a praecipe for a writ of summons is sufficient to toll the statute of limitations, even if the plaintiff instructs the prothonotary to withhold the writ from service. Prospectively from this decision, however, a writ will only be effective to commence an action if the plaintiff makes a good-faith effort to effectuate service and refrains from conduct that stalls the legal process.
Facts:
- On September 1, 1967, Frances Lamp was allegedly injured when her car was struck by a truck driven by Heyman.
- The applicable statute of limitations for the personal injury action was two years.
- On August 28, 1969, three days before the statute of limitations was to expire, Lamp's attorney filed a praecipe for a writ of summons.
- At the time of filing, Lamp's attorney gave instructions to the prothonotary to 'issue and hold' the writ.
- As a result of these instructions, the writ was not delivered to the sheriff for service.
- After two reissuances, the writ was finally served on Heyman on June 19, 1970, more than nine months after the statute of limitations had run.
Procedural Posture:
- Plaintiff Frances Lamp filed a praecipe for a writ of summons in the Court of Common Pleas of Beaver County (trial court).
- Defendants filed preliminary objections arguing the action was barred by the statute of limitations.
- The trial court sustained the defendants' preliminary objection and entered judgment for the defendants.
- Plaintiff Lamp appealed to the Superior Court of Pennsylvania (intermediate appellate court).
- The Superior Court affirmed the trial court's judgment in a per curiam order.
- Plaintiff Lamp petitioned the Supreme Court of Pennsylvania (highest court) for review, which granted allocatur.
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Issue:
Does a plaintiff's instruction to the prothonotary to 'issue and hold' a writ of summons, thereby preventing its timely service, nullify the filing of the praecipe for the purpose of tolling the statute of limitations?
Opinions:
Majority - Justice Eagen
No. A plaintiff's instruction to 'issue and hold' a writ of summons did not nullify the filing for the purpose of tolling the statute of limitations under the rules as they existed. The plain language of Pa.R.C.P. 1007 states that an action is commenced by filing a praecipe, and this was intended to protect a plaintiff who acts in time from the subsequent failures of others. The court distinguished its prior holding in Peterson, explaining it barred the plaintiff not because of the hold order itself, but because she also failed to have the unserved writ reissued within the subsequent allowable period. While recognizing the potential for abuse, the court holds that the proper remedy for a defendant prejudiced by delay is a motion for non-pros, not dismissal under the statute of limitations. However, exercising its supervisory power, the court announces a new, prospective rule: henceforth, a plaintiff must make a good-faith effort to effectuate service, and any conduct that stalls the legal machinery will nullify the commencement of the action.
Dissenting - Justice Pomeroy
Yes. A plaintiff's instruction to hold the writ should nullify the filing for statute of limitations purposes. The majority's interpretation allows a plaintiff to sue a defendant in secret and keep the action alive indefinitely, which is contrary to fairness and the purpose of statutes of limitations. The dissent argues the majority misinterprets Peterson v. Philadelphia Suburban Transportation Co., which flatly stated that a 'hold' order makes the summons a 'nullity.' Reading Rule 1007 (commencement) together with Rule 1009 (service) compels the conclusion that a plaintiff cannot intentionally frustrate the service process that the rules mandate.
Dissenting - Justice Roberts
Yes. The plaintiff's claim is barred by the statute of limitations because her instruction to prevent service nullified the writ. This action is controlled by Peterson, which rested its holding on two grounds: the plaintiff's instruction not to serve, and the failure to reissue the writ. The purpose of a writ of summons is to obtain jurisdiction and provide notice, both of which are frustrated by a 'hold' order. When a plaintiff actively prevents service, in willful disregard of the rules, the issuance of the writ should be treated as a nullity.
Analysis:
This decision is significant for establishing a new, prospective rule governing the commencement of actions in Pennsylvania. It resolved a split among lower courts by holding that, under the old rules, a 'hold' order did not defeat the tolling of the statute of limitations, but it closed this procedural loophole for all future cases. By exercising its supervisory power, the court balanced fairness to the plaintiff who relied on the prior interpretation with the need to protect defendants from stale claims and surprise litigation. The new rule aligns the act of commencing a lawsuit with a good-faith obligation to provide notice, thereby promoting the goals of speed and efficiency in the justice system.
